The National Labor Relations Board has taken or considered action in several cases involving twitter and facebook. The cases arise when an employer disciplines or fires an employee after finding out about something the employee posted on facebook or twitter. The NLRB has taken the position that facebook is not much different from any other meeting of employees to talk about their work conditions. If they are acting together, their conduct may be concerted activity protected by the National Labor Relations Act. If, on the other hand, the employee is venting only about his own issue, or if he’s using inappropriate language or sentiments, then the discipline is lawful.
The first cases took many people by surprise. Part of the surprise stemmed from two widespread misconceptions. The first is that the Act applies only to unionized workforces. Not so; the Act protects workers’ rights to organize. They can’t organize if they’re not allowed to speak to each other about the workplace. If employees get together to protest working conditions, a supervisor, or their pay, they are protected from retaliation, even if they have no plans to form a union.
The second misconception is that employees have a First Amendment right to speak out whenever they want. In the private sector (non-government employees), there is no such right. The First Amendment prohibits government from squelching the right of free speech. Most people find their speech can be regulated by their boss.
Because there is no private sector right of free speech, some employers have fired workers for posting derogatory messages. The NLRB has intervened when the messages have led to concerted activity. The intervention includes holding certain policies to be unlawful. For example, in one case, the employer’s policy prohibited employees “from making disparaging comments when discussing the company or the employee’s superiors, coworkers, and/or competitors.” Another prohibited “disrespectful conduct” towards others. A third made “inappropriate discussions” grounds for discipline. Sometimes rules prohibit employees from sharing their salary information. All violate Section 8(a)(1), according to the NLRB.
In its new memorandum, OM 11-74, the NLRB discusses some of the recent cases in an attempt to explain where the lines are drawn. A posting on facebook, just like a discussion at work, can lose its protection if it’s over the top. The Board does not protect speech if it is disloyal, reckless, or maliciously untrue. It also requires some protected activity. An employee venting alone is not covered by the Act, nor are rants that don’t concern the terms and conditions of employment. For example, a reporter was fired for inappropriate tweets about the city’s homicide rates; a bartender complaining that he did not get tips, and hoped that the bar’s clientele “choked on glass” was properly fired. Employees seeking to be protected must be speaking with or on behalf of others, not just expressing an “individual gripe.”
Employers are still getting the word about these decisions, and how much they can regulate. Good rules of thumb for the employee who wants to discuss the problems at work are: avoid gratuitous personal remarks about the supervisor; don’t disclose confidential information about the clientele; ease off the profanity; make sure the issue is of wider concern than yourself; and take a breather before you post. Angry, sarcastic comments may not do much to express concerns that the other employees share, and usually don’t reflect well on the poster.